Ex-Supreme Sandra Day O'Connor scored pretty close to a perfect ten on the compulsory exercises: she spoke clearly and simply -- her thoughts carrying the weight of experience and conviction -- and yet managed at the same time to be very smart. She was interviewed by former Time Inc. Editor-in-Chief Norman Pearlstine. Following some choice excerpts:


PEARLSTINE: It seems of late there's been an attack on the judiciary by legislative and indeed executive branches. What are your thoughts?
O'CONNOR: I'm very concerned about it. When the framers designed our Constitution the most innovative thing they did was separate the three branches. They went to great lengths to ensure that the judges would be independent. I've lived a long time, and in my lifetime I have never seen such hostility toward judges coming from Legislative, and a little bit from Executive, though not as much -- and especially the states. In South Dakota, they've got something called "Jail for Judges." What kind of a system are we going into if that passes? And you can hardly read the news without hearing about "activist judges." I'm not sure I know what that means. I think it means a judge whose decision you disagree with.

PEARLSTINE: What's behind it?
O'CONNOR: Well, there are decisions that people are unhappy about. The sodomy law in Texas; the 10 commandments ruling in Kentucky; affirmative action at the University of Michigan. These things seem to be driving alot of unhappiness.... Back in the 1950s we had the Brown vs. Board of Education which said "separate but equal." That was highly controversial, but over time that unpopular decision has been accepted by American people as correct. That kind of decision would not be possible under the regime that's being urged today.

PEARLSTINE: What do we do in a world where globalization is so much a part of the fabric of society? What deference should we make to foreign laws?
O'CONNOR: That gets us into the area of transnational law. We have so many issues that cross national boundaries now... When we became a country, the Supreme Court under John Marshall made the point that our laws included international law. Our country was very eager then for other countries to know that we accepted international law. Today we're seeing a certain amount of rejection of that principal.... With regards to the citation of a foreign judgement: there is no case from the Supreme Court that a foreign judgement is binding and relevant to our interpretation. But could it be interesting? [Yes.] Transnational law will be more and more an part of the makeup of the jurisdiction of courts in the U.S. just as it is in courts around the world.

PEARLSTINE: You've worked with judges from the Middle East. What's your sense of hope about the area?
O'CONNOR: Let me back up before Iraq if I may.... We had an enormjous amazing situation in the world with the breakup of the fomer Soviet Union because a huge chunk broke off and developed into 26 separate nation states.... Everyone had to write a constitution and create a judicial system.... Many have become members of the European Union.... So this effort succeeded to a huge extent. So we need to do the same thing for other emerging countries, like Iraq.

PEARLSTINE: Is there any evidence that Iraq is moving towards rule of law?
O'CONNOR: Oh, it's too early to ask that. I met with some Iraqi judges in the Hague last year because that's where they felt safe. I was frankly impressed by them: well-educated and committed. They wanted to get back to judging.... I was left with the impression that there are people in Iraq who want to [move ahead.] Right now some of those people are being assasinated, and I'm sure it's giong to be hard to find people to serve in those positions. Right now what they need is security.

PEARLSTINE: On the Internet: How is the court beginning to deal with immense changes that technology is visiting upon us. Does the Internet figure in your life?
O'CONNOR: I don't think we need a whole new system. Judges and courts move slowly. One of the symbols that architect Cass Gilbert created for the Supreme Court are lampposts resting on the backs of tortoises...When I arrived we used strange machines called ATEX machines, and we still had hot lead printing machines in the basement. Now it is possible that we can do legal research right on our computers, and that's such an amazing change. So I think it's pretty good. But I don't do email. I'm not into that yet.

PEARLSTINE: When thinking about the court during your years, many have said that you were following in the footsteps of Justice Powell, that you [ruled on each case without following a clear dogmatic line.]
O'CONNOR: There is some tension among some members of the Court about this question, but I think that everyone would have to acknowledge that here are certain provisions of the Constitution that are written in such broad terms that it is simply not possible to say "Oh, the framers would allow DNA testing," or "Oh, the framers would allow wiretapping." The language of the Fourth Amendment said no "unreasonable searches and seizures." Well, there's no way to look at Thomas Jefferson notes, so there's no way to know. The same is true for the 8th amendment: "cruel and unusual punishment." [At that time,] it probably was alright to execute people who were under the age of 18...

PEARLSTINE: ...or mental retardation
O'CONNOR: Yes
PEARLSTINE: ...and slavery was legal
O'CONNOR: Yes, but then we fought a civil war to pass the 12, 14, and 15th Amendments to solve that problem.

Audience Questions & Answers

Q: [About the ambiguiuty of the Constitution, and whether it should change with the norms of society.]
O'CONNOR: The framers of the constitution never dreamed that it would last as long as it has. Do you know that our Constitution is the oldest that there is in the world today? That would have astonished them. And the reason is - I'll show you - here is the Constitution with the Declaration of Independence. [See photo above.] Basically that's simple enough that most Americans can read it and understand it for themselves. The framers did not intend that we look back at the notes of the Constitutional Convention. The language is very broad - it leaves some room for interpretation.

Q: What is the reticence of the court to being televised. CSPAN has done such a service. Why not the Court?
O'CONNOR: The court is probably the most open of the three branches of government because the Supreme Court is the only one that explains in detail everything that it does. You show me a Senator or a House member or a President that does that. If that isn't open, I don't know what it is.
Now, true, you didn't see it on your television, but is that so critical? Can you not read, or hear? [Proceedings are also broadcast on the radio.] The Justices have some concerns about being seen every day, about lawyers playing to the audience. They don't want to be media stars. They don't want the arguments tailored to the media rather than to the court itself. Everything we do is so documented. [Applause]

Doron Weber, Alfred P. Sloan Foundation: Could you share your thoughts on your role in the 2000 election?
O'CONNOR: I will tell you, nothing the Courts decided changed the voting in Florida. There were three recounts, and in none of those recounts would the end result of the vote for Bush in those counties have changed. So, regardless of the Court's decision, the result would have been the same. The Court's decision was probably not the Court's best effort. Looking back, it could have been explained better than it was.

Photo by Yunghi Kim